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CollegeSource, Inc. v AcademyOne, Inc.

Case No. 09-56528 (C.A. 9, Aug. 8, 2011)

CollegeSource, Inc. (“CollegeSource”) sued AcademyOne, Inc. (“AcademyOne”) in federal district court for the Southern District of California, alleging that AcademyOne misappropriated material from CollegeSource’s websites. Academy- One moved to dismiss for lack of personal jurisdiction. See Fed. R. Civ. P. 12(b)(2). After jurisdictional discovery, the district court granted AcademyOne’s motion to dismiss. We reverse. We hold that AcademyOne is not subject to general personal jurisdiction in California, but that it is subject to specific personal jurisdiction there.

I. Background



CollegeSource and AcademyOne compete in the market to assist students and educational institutions with the college transfer process. CollegeSource, a California corporation with its principal place of business in California, maintains a digital collection of 44,000 course catalogs from 3,000 colleges and universities dating back to 1993. Each catalog is available as a .pdf file on CollegeSource’s websites collegesource.com, collegesource.org, and tes.collegesource.org. Students and college administrators may consult the catalogs to compare courses at different schools, or to research what credits a transferring student will obtain or what prerequisites she will have satisfied by virtue of courses taken at her prior institution. CollegeSource compiled its collection in large part by digitizing paper catalogs using Optical Character Recognition software, which converts a printed page into a digital format that may be searched, copied, and pasted. CollegeSource alleges that its collection of catalogs cost more than $10 million to compile and has “significant commercial value.” Students, parents, guidance counselors, and teachers may use CollegeSource’s collection of catalogs for free, but libraries and educational institutions must pay to do so. CollegeSource has also used the information in its collection of catalogs to construct a searchable database of individual course descriptions that permits rapid assessment of course equivalencies and is available to educational institutions for a fee.

AcademyOne is a Pennsylvania corporation with its principal place of business in Pennsylvania. AcademyOne’s services resemble CollegeSource’s. AcademyOne’s “Course Atlas” contains course catalogs for the current academic year, and its “Course Equivalency Management Center” enables users to compare the equivalencies of courses at different schools. Both services are available on AcademyOne’s websites academyone.com, collegetransfer.net, and courseatlas. com. Students who register with AcademyOne may search these websites for information on courses, educational institutions, and course equivalencies; create custom-designed “Equivalency Maps” and “Transfer Planning Guides”; upload documents such as letters of recommendation and resumes to a “Storage Center”; and post on a message board. Academy- One permits students to use many of the websites’ tools for free, but requires users to purchase subscriptions in order to access the websites’ more advanced features, including the Course Equivalency Management Center. Most of Academy- One’s paying subscribers are educational institutions and state higher education agencies.

AcademyOne seeks to serve a national market, but it has specifically targeted California students and schools. For example, AcademyOne owns several Google AdWords that include the term “California.” An AdWord is a word or phrase that, when entered as a search term in Google, prompts Google to display an advertisement designed by the AdWord owner linking to the owner’s website. For example, AcademyOne owns the AdWord “California college transfer.” When a Google user searches that phrase, Google returns both a list of relevant websites as determined by its own algorithm and advertisements for companies, including AcademyOne, interested in targeting people who have searched that phrase. The AdWord owner hopes that the user will visit its advertised website in addition to, or in lieu of, the websites returned in the search results proper. See generally Google AdWords, http://www.google.com/ads/adwords2 (last visited July 21, 2011); Network Automation, Inc. v. Advanced Sys. Concepts, 638 F.3d 1137, 1142-43 (9th Cir. 2011). AcademyOne also solicited California colleges and state educational agencies by phone and email, and sponsored the keynote speaker at a conference of state higher education executive officers in San Diego.
 

 

Judge(s): William A. Fletcher
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Communications , Education , Torts , Trade Secret
 
Circuit Court Judge(s)
William Fletcher
Barbara Lynn
Kim Wardlaw

 
Trial Court Judge(s)
Marilyn Huff

 
Appellant Lawyer(s) Appellant Law Firm(s)
William Woods
Alexander Papaefthimiou Law Offices of Darren J. Quinn
Darren Quinn Law Offices of Darren J. Quinn

 
Appellee Lawyer(s) Appellee Law Firm(s)
John Cooley Duane Morris LLP
Karen Crawford Duane Morris LLP
Aliza Karetnick Duane Morris LLP
David Landau Duane Morris LLP

 

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in the search results proper. see generally google adwords, for service of process in california; and pays no california academyone's assertion that it was unaware of college- 1107, 1112 (9th cir. 2004)); see also, e.g., dole food, 303 of, or related to, its actions in misappropriating collegesour- as a general rule, the exercise of judicial power is tionally and unknowingly, the material that it had once course equivalency management center. most of academy- collegesource and academyone were direct competitors in f.3d at 1115; panavision, 141 f.3d at 1323. indeed, and course descriptions from those schools' websites, and at 10349, we believe that the supreme court's recent decision before: kim mclane wardlaw and william a. fletcher, thereby invoking the benefits and protections of its injection. see, e.g., panavision, 141 f.3d at 1323; ziegler v. one is not subject to general jurisdiction in california. tennessee insufficient to confer general jurisdiction). 2. claim arising out of, or related to, forum activities attempts to purchase this very material. academyone's asser- activities and the cause of the plaintiffs' harm may be registered for trial memberships with collegesource in order texas insurer to california resident subjected insurer to per- systematic general business contacts," helicopteros nacion- [3] academyone's alleged misappropriation of college- personal jurisdiction in california, but that it is subject to spe- defendant knows to be a resident of the forum state.' " dole in j. mcintyre machinery, ltd., v. nicastro, 131 s. ct. 2780 to collegesource's ceo in 2005 and 2006 seeking to sched- we review a dismissal for lack of personal jurisdiction de collegesource was located in california. as explained above, myone used california-specific adwords and solicited cali- ing bancroft & masters, 223 f.3d at 1087). more directly per- stitutional, burger king, 471 u.s. at 480, the burden shifts to "equivalency maps" and "transfer planning guides"; upload proposed partnership, but "terminated the discussions . . . opened the .pdf files during the data collection process in banc). the "effects" test, which derives from the supreme district court granted academyone's motion to dismiss. we nedy, j.); see also id. at 2787 (distinguishing intentional tort ceo, moldoff, filed a declaration in the district court stating 1990). if collegesource does so, the burden then shifts to act by which he purposefully avails himself of the advertising in the local media, the mailing of brochures and cess; and pays no state taxes. see, e.g., goodyear, 131 s. ct. (9th cir. 1990) ("[w]here a defendant has only one contact loading material that belonged to collegesource, or that over the balance of collegesource's claims, which "arise[ ] argues that it is "a small company based in suburban philadel- alexander papaefthimiou, darren quinn, law offices of dar- (1984) (no general jurisdiction despite circulation of 10,000- website. for the southern district of california 10314 collegesource v. academyone product made in the u.k. in performing a purposeful avail- v. 3:08-cv-01987-h- vices resemble collegesource's. academyone's "course jurisdiction over a defendant whose only contact with the [2] collegesource has not satisfied the "exacting" standard academyone has no offices, real property, or staff in califor- software (for example, "cata1og" instead of "catalog") that stated that he removed all of the catalogs "[s]hortly after resolution of the controversy; (6) the importance of into its databases. the course descriptions were traceable to ifornia, academyone reiterates its unsuccessful arguments u.s.c. 1114; and unfair competition, in violation of the because there was no point in selling away, at any price, our tive forum. schwarzenegger, 374 f.3d at 802 (quoting lake, 817 f.2d at diego. e.g., shute, 897 f.2d at 381-82 (no general jurisdiction despite dery, inc., 368 f.3d 1174, 1180-81 (9th cir. 2004). a conversation is warranted to discuss how our companies (9th cir. 1977)). "[w]e may not assume the truth of allega- selves occurred within the forum." yahoo! inc. v. la ligue ted an intentional act, (2) expressly aimed at the forum state, or any academyone employee during the process." but [5] academyone's relationships with three hundred cali- [4] marketing to forum residents, at least where such mar- [7] the first prong of the specific jurisdiction test refers to policy); shute v. carnival cruise lines, 897 f.2d 377, 385 n.7 northern district of texas, sitting by designation. collegesource's catalogs and pasted those course descriptions the general rule is applicable in this products- tal collection of 44,000 course catalogs from 3,000 colleges were also present in collegesource's catalogs. misappropriation do not support jurisdiction on causes of corp. v. rudzewicz, 471 u.s. 462, 476-78 (1985). world." schwarzenegger, 374 f.3d at 801. see also, e.g., and is available to educational institutions for a fee. legesource's catalogs and course descriptions from lanham act, 15 u.s.c. 1125. after jurisdictional discovery specific jurisdiction. we agree. amba mktg. sys., inc. v. jobar int'l, inc., 551 f.2d 784, 787 and through showroom displays, and attendance at trade 10323collegesource v. academyone and educational institutions must pay to do so. collegesource dant's state; (4) the forum state's interest in adjudi- stating that collegesource "briefly" pursued academyone's discrete forum contacts such as academyone's alleged acts of with fair play and substantial justice, i.e., it must be myone owns the adword "california college transfer." port general jurisdiction in every forum in which users inter- subscribers in california; and maintains a "highly interactive" might benefit from working together in an effort to create an tions on how to collect course catalogs and descriptions from that academyone's contractor's employees downloaded the academyone also copied individual course descriptions from director for product strategy, emailed collegesource's ceo, myone is subject to general jurisdiction in california. "a website. this is the highest number of visitors from any state. 606 f.3d 1124, 1127 (9th cir. 2010) (internal quotation marks zippo mfg. co. v. zippo dot com, inc., 952 f. supp. 1119, we reject those contentions and therefore conclude that col- fuses the general and specific jurisdiction inquiries. a nonres- action unrelated to those contacts. 30). in brayton purcell, we found the express aiming prong priated material from collegesource's websites. academy- of the purposeful direction test satisfied where a nonresident tion until he received the cease-and-desist letter. he also cise of jurisdiction would not be reasonable. burger king construct a searchable database of individual course descrip- source's servers. the record does not reflect why these keting, signed up for a trial membership in order to view relevant market. brayton purcell, 606 f.3d at 1131. consent of collegesource and the relevant school. both of principal place of business. see dole food, 303 f.3d at 1113- "approximate physical presence" in california, so academy- actions of an agent are attributable to the principal."). atlas" contains course catalogs for the current academic year, [8] first, academyone does not dispute that it committed websites for several weeks following delivery of the cease- a. general jurisdiction explained that in cases involving tortious conduct, we most know that collegesource was a california resident. we have [12] academyone addresses only the first, second, and academyone to "present a compelling case" that the exercise support jurisdiction on a cause of action arising directly out the forum state, thus invoking the benefits and pro- tions in a pleading which are contradicted by affidavit," data tion of catalogs and a database of course descriptions. two 10325collegesource v. academyone "our california phone number and address is prominently "onerous." the record provides no support for the claim that cabacademyone, inc., a pennsylvania as having come from collegesource. the first page of each tional shoe co. v. washington, 326 u.s. 310, 316 (1945) therefore filed an amended complaint in june 2009 adding seventh of these factors. as to "purposeful injection" into cal- sites. two of academyone's paid subscribers have california offices, though neither is a california corporation. however, the assertion of specific jurisdiction over the defendant is con- volume, economic impact, physical presence, and integration and universities dating back to 1993. each catalog is available disc, inc. v. sys. tech. assocs., inc., 557 f.2d 1280, 1284 (9th to obtain all your catalogs in electronic form, asap?" in "decreased business and profits," was felt in the forum of the defendant law firm plagiarized copyrighted material from the in this action, the district court granted academyone's reverse. we hold that academyone is not subject to general order to convert data in the catalogs into plain text usable in nia computer crimes act, cal. penal code 502; (3) breach ("[w]hen commercial activities are carried on in behalf of an encounter collegesource's url and terms of use, and so to and systematic to justify general jurisdiction." mavrix photo, later in 2006, academyone began building its own collec- receiving the letter." collegesource disputes that declaration, collegesource argues that academyone is subject to gen- to the party, at least where he is a primary participant in the of contract; (4) misappropriation; (5) unfair competition, in clude that academyone has not shown that the exercise of terdam b.v. v. shivnath rai harnarain co., 284 f.3d 1114, the court sits. fed. r. civ. p. 4(k)(1)(a); panavision int'l, defendant of defending in the forum; (3) the extent to dismiss." brayton purcell llp v. recordon & recordon, academyone's behalf. see burger king, 471 u.s. at 479 n.22 opinion tised website in addition to, or in lieu of, the websites returned reversed and remanded. online course inventory" and "whether collegesource had the collegesource was based in california before receiving the bers"). 1086. academyone has not closed its pennsylvania offices the purposeful direction test can be met where a plaintiff ick sent a follow-up email to cooper "to determine whether expected to cause harm in the forum constitute purposeful out-of-state party those activities may sometimes be ascribed intentional acts by downloading collegesource's catalogs, created by collegesource's optical character recognition has also used the information in its collection of catalogs to of development, testified in his deposition that the contractor tion to exist over a nonresident defendant such as academy- we analyze specific jurisdiction under a three-prong test: complaint must be taken as true. schwarzenegger v. fred dole food, 303 f.3d at 1114. *the honorable barbara m. lynn, united states district judge for the direct his activities or consummate some transaction `purposefully direct[s] his activities' at the forum state, apply- trade show in san diego is an isolated contact of just the type acts over a relatively short period of time. see international food co. v. watts, 303 f.3d 1104, 1111 (9th cir. 2002) (quot- 10316 collegesource v. academyone 10317collegesource v. academyone interstate practice of law, any burden [of litigation in a forum 10330 collegesource v. academyone academyone's efforts have borne fruit. approximately [10] finally, we conclude that academyone's alleged mis- priation of plaintiff's likeness); sinatra v. nat'l enquirer, academyone hired the contractor and gave it specific instruc- b. specific jurisdiction a newcomer to the college transfer market, was unaware of 10309 past." menken v. emm, 503 f.3d 1050, 1060 (9th cir. 2007) conflict in collegesource's favor. see doe v. unocal corp., (quoting yahoo!, 433 f.3d at 1206). district of california, alleging that academyone misappro- a list of relevant websites as determined by its own algorithm group, inc., 623 f.3d 421, 426 (7th cir. 2010); cossaboon v. exists becomes an issue only when the forum state is shown cease-and-desist letter is implausible, to say the least. reasonable. academyone to set forth a "compelling case" that the exer- alleges that its collection of catalogs cost more than $10 mil- months before delivery of the cease-and-desist letter -- and, argued and submitted in any case, it is undisputed that academyone maintained transportation and telecommunications and the increasing co., 632 f.3d 570, 579 (9th cir. 2011) (quoting international collegesource, inc., a california defendant's actions were felt, whether or not the actions them- 10324 collegesource v. academyone ties." (internal quotation marks and citations omitted)); sher, marilyn l. huff, district judge, presiding academyone seeks to serve a national market, but it has collegesource because they contained idiosyncratic errors contractor to whom academyone provided a list of u.s. col- collegesource argues in the alternative that academyone three catalogs each. academyone also hired a china-based with the forum, does not support general jurisdiction. see, chase collegesource's catalogs. academyone's executive v. brown, 131 s. ct. 2846, 2851 (2011). for general jurisdic- relevant officers at collegesource other than through the lat- held inadequate to sustain general jurisdiction in helicop- will not support general jurisdiction."). collegesource con- note that collegesource had earlier rebuffed academyone's shoe, 326 u.s. at 318)). to determine whether a nonresident (1952). california. already determined that academyone purposefully directed filed august 8, 2011 we reverse the district court's dismissal of collegesource's 2006). the standard for general jurisdiction "is an exacting and-desist letter, and continues to keep misappropriated rather than academyone downloaded collegesource's col- 3. reasonableness enrichment. during discovery in a related action in pennsyl- three hundred california students have registered with rial. 606 f.3d at 1129-31. because both firms practiced in the schools' websites but were actually hosted on college- lion to compile and has "significant commercial value." stu- he then sent a follow-up email asking, "[w]hat does it cost at 2852; helicopteros, 466 u.s. at 411; glencore grain rot- tional notions of fair play and substantial justice.' " interna- google to display an advertisement designed by the adword i. background for the appellee. not lawful unless the defendant "purposefully avails president for marketing, johnson, telephoned and emailed a distinct from those activities.' " king v. am. family mut. ins. 235, 253 (1958). there may be exceptions, say, for source's intellectual property does not support general juris- fore address the three requirements of the calder "effects" caruth v. int'l psychoanalytical ass'n, 59 f.3d 126, 128 (9th united states court of appeals inc., 854 f.2d 1191, 1195 (9th cir. 1988) (in action for misap- forum plaintiff law firm's website and republished the mate- (quoting ce distrib., llc v. new sensor corp., 380 f.3d likewise, we do not accept academyone's contention that op. at 10340-47 (9th cir. august 8, 2011). descriptions from those catalogs. academyone realizes no profit -- and two paid subscribers transferring student will obtain or what prerequisites she will 220, 223 (1957) (holding that one insurance policy issued by unconnected with the activities there"); tuazon, 433 f.3d at owner linking to the owner's website. for example, acade- that may be searched, copied, and pasted. collegesource with the forum or resident thereof; or perform some one's contractor performed the relevant work on interest in assisting us (academyone) with the creation of an alleges that the defendant individually targeted him by misus- assisting california students and schools in the college trans- contends that its alleged acts of misappropriation are not corporation, opinion to evaluate their competitor's product. academyone's vice in the forum state." goodyear dunlop tires operations, s.a. as a .pdf file on collegesource's websites collegesource.com, l.p. v. toeppen, 141 f.3d 1316, 1320 (9th cir. 1998). califor- llp, san diego, california, aliza rebecca karetnick, david transfer process. collegesource, a california corporation with nia; markets its services to california students and educational opinion by judge william a. fletcher maintenance of an interactive website were sufficient to sup- academyone. this is 15 percent of all students who have reg- conclusion leges and universities, as well as the urls of their home- motion to dismiss for lack of personal jurisdiction. see fed. (3) causing harm that the defendant knows is likely to be suf- per month); bancroft & masters, 223 f.3d at 1086 we focus on collegesource's misappropriation claim, and systematic" forum activity, but was, rather, a few discrete [6] in sum, academyone's california activities do not websites include information on california schools and serve a conference call could have been scheduled without consid- fed. r. civ. p. 12(b)(2). after jurisdictional discovery, the fered in the forum state." brayton purcell, 606 f.3d at 1128 nia," such that defending this action in california would be relatively specialized field of elder abuse law, we concluded (1) the non-resident defendant must purposefully no offices or staff in california; is not registered to do busi- http://www.google.com/ads/adwords2 (last visited july 21, december 2005, peggi munkittrick, academyone's executive taxes. search these websites for information on courses, educational (9th cir. 2000). "the standard is met only by `continuous cor- defendant-appellee. or foreign-country) corporations to hear any and all claims ing ample opportunity for academyone's employees to ales de colombia, s.a. v. hall, 466 u.s. 408, 416 (1984), that finally, as we explained in mavrix photo, the interactivity 638 f.3d 1137, 1142-43 (9th cir. 2011). academyone also forum is the purposeful direction of a foreign act having effect courses at different schools, or to research what credits a second, we conclude that academyone expressly aimed its claims. see, e.g., action embroidery, 368 f.3d at 1180-81. facie showing of jurisdictional facts to withstand the motion acted with the website, "the eventual demise of all restrictions & masters, inc. v. augusta nat'l, inc., 223 f.3d 1082, 1086 cease-and-desist letter. w. fletcher, circuit judge: southern district of california in october 2008, alleging six collegesource and academyone compete in the market to that it did not expressly aim any acts at california and did not cific personal jurisdiction over academyone with respect to schools' websites. kerry cooper, "to determine whether collegesource has any 10312 collegesource v. academyone have satisfied by virtue of courses taken at her prior institu- ber 2005, ed johnson, academyone's vice president for mar- include the term "california." an adword is a word or and telephone calls to california . . . , [defendant's] newsletter harm to collegesource's competitive edge in the market of collegesource brought suit in federal district court for the to collegesource's collection of course catalogs. in septem- ference call. cooper filed a declaration in the district court eral jurisdiction because academyone misappropriated 1124 (w.d. pa. 1997), are now extremely common. if the two prongs. sher v. johnson, 911 f.2d 1357, 1361 (9th cir. diction, the district court applies the law of the state in which institutions, and course equivalencies; create custom-designed "economic impact." tuazon, 433 f.3d at 1172. see, e.g., kee- based on academyone's misappropriation of its catalogs and with the forum state, a close nexus between its forum-related ers rather than their own. 14; panavision, 141 f.3d at 1322 n.2; core-vent corp. v. and removed its corporate operations to california. cf., e.g., ees downloaded .pdf files of catalogs that were linked from institutional profiles for publication on academyone's web- duct at california because employees of its chinese contractor inc. ("academyone") in federal district court for the southern commerce" doctrine cannot displace it. cific personal jurisdiction there. what our opportunities might be." in january 2006, munkittr- collegesource's terms of use, which prohibit redistribution, interest and/or ability to provide us with an electronic file of 1421). collegesource bears the burden of satisfying the first ment (rather than a purposeful direction) analysis, the plural- both purposeful availment and purposeful direction. we have an evidentiary hearing, "the plaintiff need only make a prima and republishing collegesource's catalogs. academyone [1] collegesource makes a cursory argument that acade- legesource's claims arise out of academyone's activities in nia's long-arm statute, cal. civ. proc. code 410.10, "is defendant's contacts are sufficiently substantial, continuous, displayed on our website's `contacts' page." it is unclear how jurisdictional analyses under state law and federal due process because collegesource has made a prima facie case that court's decision in calder v. jones, 465 u.s. 783 (1984), any harm to collegesource's competitive advantage, such as ment . . . is satisfied when `the defendant is alleged to have kingdom based on an injury caused by an allegedly defective lections of catalogs; because academyone did not open the pal place of business in pennsylvania. academyone's ser- engaged in wrongful conduct targeted at a plaintiff whom the this opinion. the location of its principal competitor, which it contacted "such that the maintenance of the suit does not offend `tradi- munkittrick proposed "a conference call to further identify collegesource.org, and tes.collegesource.org. students and often employ a purposeful direction analysis. schwarzeneg- 10327collegesource v. academyone personal jurisdiction, the court may also exercise jurisdiction academyone argues that it did not expressly aim its con- sonal jurisdiction in california to answer claim based on that which most readily supports the exercise of specific jurisdic- complaint and remand for further proceedings consistent with mcintyre machinery was a product liability case. the ques- 10328 collegesource v. academyone tion. collegesource compiled its collection in large part by schools chose to host their catalogs on collegesource's serv- court may assert general jurisdiction over foreign (sister-state ing his intellectual property on the defendant's website for the for the ninth circuit collegesource alleges, for several weeks thereafter -- afford- pennsylvania, others, such as the supervisor of academy- cir. may 18, 2011) (quoting sinatra, 854 f.2d at 1201). see a relatively small industry. three academyone employees tered two of its trademarks as adwords. collegesource 07-15386, 2011 u.s. app. lexis 10010, at *56 n.19 (9th r. civ. p. 12(b)(2). collegesource timely appealed. one a cease-and-desist letter demanding the removal of col- propriation of plaintiff's name, permitting "the exercise of out of a common nucleus of operative facts" with the misap- tial and of such a nature as to justify suit against [the appropriation of its catalogs and course descriptions, so "approximate physical presence" in the forum state. bancroft then to provide that information to academyone for publica- tions of its complaint," but uncontroverted allegations in the standard, as it should be, because a finding of general jurisdic- cir. 1995) (purposeful injection demonstrated by "mail, faxes, competitive advantage." fornia with respect to the remainder of collegesource's claims for violation of right to publicity based on misappro- .pdf files "without opening each individual files" so that "[n]o of a non-resident defendant's website typically "provides lim- itself of the privilege of conducting activities within tors: martin motor co., 374 f.3d 797, 800 (9th cir. 2004) (quoting one moved to dismiss for lack of personal jurisdiction. see a "storage center"; and post on a message board. academy- these pages were reproduced on academyone's websites. and systematic, we consider their "[l]ongevity, continuity, more academyone employees registered for trial member- conducting of promotional seminars); congoleum corp. v. one's websites, amounting to 19 percent of all visitors to the it was unaware that it had downloaded collegesource's cata- cir. 2006). example, academyone owns several google adwords that cating the dispute; (5) the most efficient judicial discover that the catalogs came from collegesource. we also 433 f.3d at 1206). collegesource has alleged economic loss academyone employees would have learned to contact the teros. see 466 u.s. at 416. dents. all of these contacts indicate purposeful injection. see istered with and provided an address to academyone. forty- academyone is "small." further, while some important wit- ciated newspapers, 611 f.3d 601, 608-09 (9th cir. 2010) dictional significance to the fact that employees of academy- documents such as letters of recommendation and resumes to of jurisdiction would be unreasonable and therefore violate collegesource's collection of catalogs for free, but libraries access the websites' more advanced features, including the requires that "the defendant allegedly must have (1) commit- have "certain minimum contacts" with the relevant forum promotion of products to potential customers through the mail online course inventory." munkittrick again proposed a con- tion was whether suit could be brought in new jersey state the adword owner hopes that the user will visit its adver- digitizing paper catalogs using optical character recognition causes of action: (1) violations of the computer fraud and jurisdiction in this case would be unreasonable. mavrix photo, inc. v. brand techs., inc., no. 09-56134, slip modification, or commercial use of the catalogs without the a collegesource sales representative to ask what college- 26,000 unique california ip addresses have visited academy- into the forum state's affairs; (2) the burden on the fer process. we have repeatedly held that a corporation incurs its principal place of business in california, maintains a digi- john p. cooley, karen shichman crawford, duane morris, eight california colleges and universities have submitted perkins v. benguet consol. mining co., 342 u.s. 437, 447-48 course descriptions on its websites. trict of pennsylvania. "whether another reasonable forum also corp. inv. bus. brokers v. melcher, 824 f.2d 786, 791 15,000 copies of nonresident defendant's magazine in forum source would charge for rights to its collection of catalogs. required."), rev'd on other grounds, 499 u.s. 585 (1991); and its "course equivalency management center" enables or relates to the defendant's forum-related activities; liability case, and the so-called "stream-of- ce's catalogs and course descriptions to justify the exercise of eration of the time zones (and therefore the locations) of the violation of cal. bus. & prof. code 17200; and (6) unjust academyone's databases. because we are reviewing a dis- ing an `effects' test that focuses on the forum in which the enterprise and has acted purposefully in directing those activi- when a google user searches that phrase, google returns both state." brayton purcell, 606 f.3d at 1128 (quoting yahoo!, ceo, filed a declaration in the district court stating that he did coextensive with federal due process requirements, [so] the f. landau, duane morris, llp, philadelphia, pennsylvania, one, the defendant must engage in "continuous and in april 2007, collegesource hand-delivered to academy- missal for lack of personal jurisdiction, we resolve this factual collegesource's catalogs. in october 2005, johnson phoned 10313collegesource v. academyone tinent here, "we have held that the `expressly aimed' prong of u.s. 286, 294 (1980) (quoting hanson v. denckla, 357 u.s. establishing that jurisdiction is proper. id. where, as here, the nobel indus. ab, 11 f.3d 1482, 1487 (9th cir. 1993). further, participants. it is also difficult to believe that academyone, contractor's work. lin zhou, academyone's senior manager lake v. lake, 817 f.2d 1416, 1421 (9th cir. 1987). however, in late 2005 and early 2006, a few months after its found- solicited california colleges and state educational agencies by 1124-25 (9th cir. 2002); bancroft & masters, 223 f.3d at of personal jurisdiction, the plaintiff bears the burden of ton v. hustler magazine, inc., 465 u.s. 770, 772, 779 & n.11 academyone put 680 catalogs from collegesource's col- ing, academyone made a series of attempts to acquire rights 10319collegesource v. academyone sites academyone.com, collegetransfer.net, and cour- source's california location clear. it is difficult to believe that as we explained in mavrix photo, no. 09-56134, slip op. where, as here, no federal statute authorizes personal juris- a user can exchange information with the host computer," schools. both services are available on academyone's web- other than one's residence] is substantially less than in days registered users who identified themselves as california resi- in the forum state" (internal quotation marks, citation, and indian river cnty., 64 f.3d 470, 475 (9th cir. 1995). acade- on the personal jurisdiction of state courts" would be the inev- 10315collegesource v. academyone nia; is not licensed to do business in california; has no agent collegesource's url. the second page file contained against them when their affiliations with the state are so `con- economic loss, for jurisdictional purposes, in the forum of its academyone's websites. david moldoff, academyone's diego, california, for the appellant. no. 09-56134, slip op. at 10346. interactive websites "where california with respect to collegesource's misappropriation cise of jurisdiction comports with "fair play and substantial into the state's regulatory or economic markets." tuazon v. collegesource, inc. ("collegesource") sued academyone, the actions of academyone and its contractor in downloading porate operations within a state [that are] thought so substan- courses that could be loaded into our course inventory." phia" whose "key employees and witnesses are in pennsylva- users to compare the equivalencies of courses at different director for product strategy, munkittrick, sent several emails academyone's counsel was able to participate in oral argu- land, 792 f.2d 925, 928 (9th cir. 1986) ("systematic" sale of dant's forum contacts are sufficiently substantial, continuous, terms of use; and because academyone did not know that laws; (2) the claim must be one which arises out of tion. we conclude that a california court may exercise spe- sonal jurisdiction, but not general personal jurisdiction, in pages. academyone directed its contractor to collect catalogs 1173 ("generally, an isolated contact with the forum state . . . 2008). in opposing a defendant's motion to dismiss for lack shoe, 326 u.s. at 317 (corporate agent's "conduct of single republishing them on its own websites, and obtaining course collegesource sales representative in 2005, seeking to pur- ger, 374 f.3d at 802. collegesource has alleged tortious mis- ness in the state; has no registered agent for service of pro- copyright notice or `splash page' was seen by the contractor defendant consistent with due process, that defendant must source's california place of business prior to its receipt of the ii. standard of review jurisdiction. see, e.g., mcgee v. int'l life ins. co., 355 u.s. [11] collegesource's misappropriation claim arises out of [13] after considering the burger king factors, we con- records in california by popular country music band from appeal from the united states district court contre le racisme, 433 f.3d 1199, 1206 (9th cir. 2006) (en fornia registered users -- from whom, moldoff declares, vania, collegesource learned that academyone had regis- assist students and educational institutions with the college dlw aktiengesellschaft, 729 f.2d 1240, 1242-43 (9th cir. tinuous and systematic' as to render them essentially at home appropriation of collegesource's catalogs inflicted "harm that 10321collegesource v. academyone logs and put them onto its own websites. academyone's 911 f.2d at 1362 ("for purposes of personal jurisdiction, the abuse act, 18 u.s.c. 1030(g); (2) violations of the califor- (quoting milliken v. meyer, 311 u.s. 457, 463 (1940)). 2011); network automation, inc. v. advanced sys. concepts, phone and email, and sponsored the keynote speaker at a con- the misappropriation claim. under the doctrine of pendent academyone is also subject to personal jurisdiction in cali- justice" and is therefore reasonable, we consider seven fac- jurisdiction when there has been purposeful direction. j. stating that academyone left misappropriated catalogs on its are the same." schwarzenegger, 374 f.3d at 800-01. for a we conclude that academyone is subject to specific per- of its forum contacts, but this is specific rather than general 10331collegesource v. academyone that the nonresident defendant "knew of [the plaintiff's] exis- instance, in cases involving an intentional tort. but tion permits a defendant to be haled into court in the forum 248 f.3d 915, 922 (9th cir. 2001). phrase that, when entered as a search term in google, prompts tions that permits rapid assessment of course equivalencies (9th cir. 1987) (same). academyone has not made that show- maine med. ctr., 600 f.3d 25, 35-36 (1st cir. 2010). 1. purposeful direction moldoff conceded that he did not personally supervise the 1984) (no general jurisdiction despite solicitation of orders, unsuccessfully attempted to purchase strains credulity. due process. id. at 477-78. in determining whether the exer- shows and sales meetings). academyone's single trip to a tion. during the collection process, the contractor's employ- institutions; has three hundred registered users and two paid "in tort cases, we typically inquire whether a defendant and advertisements for companies, including academyone, (applying purposeful direction analysis in action involving collegesource's catalogs and course descriptions in califor- ference of state higher education executive officers in san ter's website or a reference that would have made college- as to the "burden" of litigating in california, academyone fall well short of the necessary substantial "volume" and r.j. reynolds tobacco co., 433 f.3d 1163, 1172 (9th cir. j. mcintyre mach., 131 s. ct. at 2785 (plurality op. of ken- [9] in the circumstances of this case, we attribute no juris- state to answer for any of its activities anywhere in the (2011), is consistent with the line of cases finding specific software, which converts a printed page into a digital format the misappropriated catalogs on its websites for several privilege of conducting activities in the forum, omitted). the plaintiff cannot "simply rest on the bare allega- ule conference calls. collegesource's ceo, cooper, declared, behalf are not enough to subject it to suit on causes of action court to exercise personal jurisdiction over a nonresident corporation, no. 09-56528 claims. under the doctrine of pendent personal jurisdiction, nesses, such as academyone's ceo, moldoff, may reside in ren j. quinn, del mar, california, william f. woods, san cir. 1977), but we resolve factual disputes in the plaintiff's of the conflict with the sovereignty of the defen- emphasis omitted)). its actions at california. actions directed at a forum resident 10326 collegesource v. academyone academyone is a pennsylvania corporation with its princi- actions at the forum state. "[t]he `express aiming' require- ships with collegesource that allowed them to download (1) the extent of the defendants' purposeful injection 611 f.3d at 609 n.4 (citing brayton purcell, 606 f.3d at 1129- seatlas.com. students who register with academyone may itable result. world-wide volkswagen corp. v. woodson, 444 necessary to establish general jurisdiction. academyone has ited help in answering the distinct question whether the defen- tections of its laws." hanson v. denckla, 357 u.s. 10329collegesource v. academyone counsel test in turn. the payment of commissions to forum travel agents, and the dents, parents, guidance counselors, and teachers may use ity wrote: ing. specifically targeted california students and schools. for the forum to the plaintiff's interest in convenient and tion that it was fortunate enough to obtain for free, uninten- purpose of competing with the plaintiff in the forum." love, lection on its websites. the catalogs were easily identifiable ment on appeal before this court via videoconference. this favor, pebble beach co. v. caddy, 453 f.3d 1151, 1154 (9th collegesource cannot litigate its claims" in the eastern dis- novo. boschetto v. hansing, 539 f.3d 1011, 1015 (9th cir. defendant's motion is based on written materials rather than interested in targeting people who have searched that phrase. has sufficient "minimum contacts" with california arising out .pdf file containing a catalog was a "splash page" bearing 10322 collegesource v. academyone one permits students to use many of the websites' tools for sent to california, [and] dues collected from california mem- free, but requires users to purchase subscriptions in order to iii. discussion causes of action for trademark infringement, in violation of 15 ("[e]ngaging in commerce with residents of the forum state several times in order to propose a business relationship. or isolated items of activities in a state in the corporation's is not in and of itself the kind of activity that approximates one's chinese contractor, do not. "[w]ith the advances in diction because the misappropriation was not a "continuous to be unreasonable." bauman v. daimlerchrysler corp., no. circuit judges, and barbara m. lynn, district judge.* keting does not result in substantial and continuous commerce fornia business by phone, email, and in-person marketing. its tence, targeted [the plaintiff's] business, and entered direct higher education agencies. 10318 collegesource v. academyone cases from cases governed by this "general rule"). we there- effective relief; and (7) the existence of an alterna- defendant] on causes of action arising from dealings entirely one's paying subscribers are educational institutions and state purposeful direction analysis is appropriate. see love v. asso- october 8, 2010--pasadena, california factor favors academyone, but only slightly. competition with [the plaintiff]." id. at 1130. college administrators may consult the catalogs to compare 235, 251 (1958)). see also, e.g., ubid, inc. v. godaddy ident defendant's discrete, isolated contacts with the forum not know that collegesource was a california-based corpora- 10320 collegesource v. academyone catalogs and so did not encounter collegesource's url or court against a manufacturer headquartered in the united and (3) the exercise of jurisdiction must comport physical presence within the state's borders."); scott v. bree- the defendant knows is likely to be suffered in the forum for publication "forum activities" because it did not know that it was down- plaintiff-appellant, d.c. no. propriation claim. action embroidery corp. v. atl. embroi- as to the availability of a "suitable alternative forum," academyone asserts that "[t]here is simply no reason that


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